BOATSPRAY LIMITED V THE SHIP "SHENGALA" HC AK CIV-2009-404-002524 [2009] NZHC 1147 (28 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                    CIV-2009-404-002524

               UNDER                         ADMIRALTY ACTION IN REM


               BETWEEN                       BOATSPRAY LIMITED
                                             Plaintiff

               AND                           THE SHIP "SHENGALA"
       
                                     Defendant


Hearing:       19 August 2009

Appearances: M Heard for the plaintiff
         
   G A Keene for the defendant

Judgment:      28 August 2009


                            JUDGMENT OF STEVENS J


            
This judgment was delivered by me on Friday, 28 August 2009 at 11am
                          pursuant to r 11.5 of the High Court
Rules.



                                Registrar/Deputy Registrar




Solicitors/Counsel:
M Heard, LeeSalmonLong, PO Box 2026,
Shortland Street, Auckland 1140
Richard Allen Law, PO Box 78326, Grey Lynn, Auckland 1245
Lovegroves Solicitors, PO Box 25006, St
Heliers, Auckland 1740
G A Keene, 45B Epsom Avenue, Epsom, Auckland 1023




BOATSPRAY LIMITED V THE SHIP "SHENGALA" HC AK CIV-2009-404-002524
28 August 2009

Introduction


[1]      This is an application by the plaintiff, Boatspray Limited, for summary
judgment against
the ship "Shengala", the defendant (the vessel) under the admiralty
jurisdiction of the High Court pursuant to s 4(1)(m) of the Admiralty
Act 1973. The
plaintiff's claim against the vessel arises in respect of painting work carried out on
the vessel. The plaintiff sought
the sum of $29,765.55 plus interest and indemnity
costs.


[2]      The vessel was placed under arrest by the Court on 4 August 2009.
The
claim for summary judgment was heard on 19 August 2009.                 The defendant's
counsel was critical of the plaintiff
for invoking the Court's Admiralty jurisdiction.
But the role of the Court is to determine the issues properly brought before it,
as was
this application.


[3]      The plaintiff is a company carrying on business as a boat painter. The
plaintiff took assignment
of the rights of Boatspray Half Moon Bay Limited
(Boatspray HMB) in respect of a contract to repaint the vessel made with Mr John
Barwell, the vessel's owner (the owner). The plaintiff further contended that it took
instructions direct from the owner giving rise
to a contract involving the same terms
as the Boatspray HMB contract. The owner accepts that the outstanding balance on
invoices
rendered to him by the plaintiff is $29,765.55.


[4]      The owner contended that there was no contract made between the plaintiff
and himself; his only contract was with Boatspray HMB and he had no notice of any
assignment of the contract to the plaintiff. Further,
he claimed that the estimate of
costs was exceeded and there was defective workmanship. Hence, the owner argued
that he had an arguable
defence to the application and summary judgment should be
declined.


[5]      For the reasons set out below, this is a proper case
for summary judgment and
the plaintiff's application will be granted, together with interest and costs.

Factual background


[6]
   The background facts are not in dispute. The chronology commences in
August 2000 when Boatspray HMB provided a written estimate
for repainting the
owner's previous vessel. This estimate expressly stated that it was an estimate only
and final charges would be
on a "labour plus materials" basis. On 19 December
2000, Boatspray HMB issued invoices for work done to the owner's previous vessel.
Its registered name was displayed in the header.


[7]    From 2007 onwards, terms and conditions of Boatspray HMB were
prominently
displayed in Boatspray's premises.         On 3 April 2008, an estimate
(labour and materials) for repainting certain external areas
of the vessel was sent by
the director of Boatspray HMB to the owner. He then indicated that he was willing
to bring the vessel to
Boatspray HMB in July. In mid June 2008, the vessel was
transported to Boatspray HMB marina by truck, unloaded into the boatbuilders
premises and modifications
began. Between 27 June 2008 and 14 July 2008, work
started preparing anti-foul areas of the vessel for repainting.


[8]    On 24
July 2008, a sale and purchase agreement for the Boatspray business
was executed. The plaintiff was incorporated on 14 August 2008.
On 1 September
2008, the sale and purchase of the Boatspray HMB business to the plaintiff settled.
All work in progress was assigned
to the plaintiff. The change in ownership was
notified in a Half Moon Bay Marina newsletter sent to the owner. The plaintiff's
terms
and conditions were displayed in its premises.


[9]    On 9 September 2008, the first invoice for $4,464.01 for work carried out
on
the vessel was issued by the plaintiff.        This included engine room materials
purchased during August. The owner paid this
amount by cheque on the same day.


[10]   The owner has claimed that during September 2008 he was given an estimate
of $25,000 in
total to finish the vessel by Mr Craig Miller. This is denied by
Mr Miller who was absent from New Zealand between 11 September 2008
and
2 October 2008.

[11]     On 23 October 2008, the vessel was moved to the plaintiff's premises. The
plaintiff's staff discovered
a lack of adhesion with underlying original paintwork.
The owner was contacted immediately and he instructed the plaintiff to undertake
additional work to strip back defective coatings and to be repainted. In response to a
request for an estimate, the owner was told
that the whole job specification had
changed from any previous estimates and it was not possible to give an estimate,
given the nature
of the defects.


[12]     On 29 October 2008, the owner instructed the plaintiff to repaint parts of the
interior of the vessel.
He requested a "ball park" estimate, but no such estimate was
given.    In early November 2008, the owner again requested an estimate
from
Mr Miller. Mr Miller said that the nature of the job meant that it was very hard to
estimate. The owner suggested that the job
continue on a charge-up basis and this
was agreed to. In mid to late November 2008, Mr Miller gave the owner a verbal
update of costs
to date, which were approximately $15,900 excluding GST and
disbursements. The owner agreed to make a progress payment. On 26 November
2008, the plaintiff issued a second invoice for $16,875 when the vessel was less than
half complete. There was still interior and
exterior gloss paint, anti-foul and stripes
to be completed. The owner paid the full amount by cheque on the same day.


[13]   
 On 9 December 2008, the owner viewed the vessel and expressed how
pleased he was with the result.       However, in mid-December
2008 the owner
complained about the stripe above the waterline (the boot top stripe). This was
repainted to tapes set to the owner's
specifications and signed off by him.        On
23 December 2008, the vessel was moved back to the boatbuilder's yard with minor
work to be completed once the paint had hardened and prior to launching the vessel.
On the same day, the plaintiff issued a third
invoice for $32,342.86. No charge was
included for the first or second painting of the boot stripe. The repainting was 95%
complete.


[14]     In late December 2008, the owner complained by email and telephone of
several minor defects including varnish issues and
paint runs. But no issues relating
to costs were raised. On 30 December 2008, the owner met up with Mr Miller and

complained that
the waterline stripe was not correct, despite it being painted to his
requirements. He also complained that some areas needed to
be cut and polished.


[15]    Around 9 January 2009, the owner instructed the plaintiff to repaint the
interior parts. This was
a new job and no estimate was sought.


[16]    Around 27 January 2009, Mr Simon Manning the director of the plaintiff
telephoned
the owner to follow up on the outstanding invoice. When the owner
referred to an earlier email, Mr Manning responded by email and sought a meeting to
address any concerns.
On 16 February 2009, the owner met with Mr Miller and
identified 11 aspects of the job he claimed were defective. Significantly,
he did not
raise any issues as to costs. On 18 February 2009, the plaintiff wrote to the owner
(with no admission as to liability)
setting out a plan to address each of his concerns
about alleged defects. The plaintiff requested payment of a substantial amount
of
outstanding debt prior to any work commencing. An invoice for repainting parts for
$2,422.69 was issued by the plaintiff.


[17]
   On 20 February 2009, the owner met Mr Manning and Mr Miller. The owner
commented that the vessel looked great except for a few
minor issues. Again, no
costs concerns were raised.      The owner inspected the painted parts and told
Mr Manning that "the boat
is 99% perfect". The owner agreed to pay the remaining
debt, but to hold back a couple of thousand dollars until all issued were
resolved.
Mr Manning was satisfied enough to release parts. The owner paid $5,000 to the
plaintiff by cheque and uplifted the repainted
parts.


[18]    On 12 March 2009, the owner emailed the plaintiff and queried the charges
for the boat parts. On 16 March 2009,
Mr Manning emailed the owner and asked
him to pay the outstanding bill. The owner emailed the plaintiff stating that he
would not
agree to make payment until his concerns had been rectified by the
plaintiff.   On 17 March 2009, the plaintiff sent the owner a
letter demanding
payment of all outstanding amounts. On 19 March 2009, the owner telephoned
Mr Manning and raised for the first time
the overall costs for the project. On 23
March 2009, the plaintiff sent the owner a final demand for payment which was not
met.


Applicable principles


[19]   An application is initially made under r 12.1 of the High Court Rules. Rule
12.2 provides:

    
  Judgment when there is no defence or when no cause of action can
       succeed

       (1) The court may give judgment against
a defendant if the plaintiff
           satisfies the court that the defendant has no defence to [a cause of action
           in
the statement of claim or to a particular part of any such cause of
           action].

       (2) The court may give judgment against
a plaintiff if the defendant
           satisfies the court that none of the causes of action in the plaintiff's
           statement
of claim can succeed.

[20]   The principles relating to summary judgment set out in the leading cases of
Pemberton v Chappell  [1987] 1 NZLR 1, Bilbie Dymock Corp v Patel & Anor
 (1987) 1 PRNZ 84 (CA), and more recently in Jowada Holdings Limited v Cullen
Investments Ltd CA248/02 5 June 2003. The approach to be taken on a summary
judgment application was outlined by the Court of Appeal at [28] as follows:

       [28] In order to obtain summary judgment under
Rule 136 of the High Court
       Rules a plaintiff must satisfy the Court that the defendant has no defence to
       its claim.
In essence, the Court must be persuaded that on the material
       before the Court the plaintiff has established the necessary
facts and legal
       basis for its claim and that there is no reasonably arguable defence available
       to the defendant. Once
the plaintiff has established a prima facie case, if the
       defence raises questions of fact, on which the Court's decision may
turn,
       summary judgment will usually be inappropriate. That is particularly so if
       resolution of such matters depends
on the assessment by the Court of
       credibility or reliability of witnesses. On the other hand, where despite the
       differences
on certain factual matters the lack of a tenable defence is plain on
       the material before the Court, to the extent that the
Court is sure on the point,
       summary judgment will in general be entered. That will be the case even if
       legal arguments
must be ruled on to reach the decision. Once the Court has
       been satisfied there is no defence Rule 136 confers a discretion
to refuse
       summary judgment. The general purpose of the Rules however is the just,
       speedy, and unexpensive determination
of proceedings, and if there are no
       circumstances suggesting summary judgment might cause injustice, the
       application
will invariably be granted. All these principles emerge from well
       known decisions of the Court including Pemberton v Chappell
 (1987) NZLR
       1, 3-4, 5; National Bank of New Zealand Ltd v Loomes  (1989) 2 PRNZ 211,
       214; and Sudfeldt v UDC Finance Ltd  (1987) 1 PRNZ 205, 209.

[21]   The principles can be summarised as follows:

       a)     A plaintiff seeking summary judgment has the onus of showing
that
              there is no arguable defence. The Court must be left without any real
              doubt or uncertainty on the
matter;


       b)     The Court will not hesitate to decide questions of law where
              appropriate;


       c)     The
Court will not attempt to resolve genuine conflicts of evidence, or
              to assess the credibility of statements in affidavits;


       d)     In determining whether there is a genuine and relevant conflict of fact,
              the Court is entitled to examine
and reject spurious defences or plainly
              contrived factual conflicts. It is not required to accept uncritically
   
          every statement put before it, however equivocal, imprecise,
              inconsistent with undisputed contemporary documents
or other
              statement, or inherently improbable;


       e)     The Court will not attempt to resolve conflict between
experts; and


       f)     In weighing these matters, the Court will take a robust approach and
              enter judgment even
where there may be differences on certain factual
              matters if the lack of a tenable defence is plain on the material
before
              the Court.


[22]   I remind myself that summary judgment will be inappropriate where there are
disputed issues
of material facts and where the ultimate determination depends on a
judgment only able to be properly arrived at after a full hearing
of the evidence: see
Westpac Banking Corporation v MM Kembla (New Zealand) Ltd  [2001] 2 NZLR
298 (CA).


[23]   Mr Keene, counsel for the defendant, helpfully referred to the following
passage of the Court of Appeal judgment in
Doyles Trading Company Ltd v Westend
Services Ltd  [1989] 1 NZLR 38 at 41:

       While the desirability of eliminating the frustration and delays which can be
       caused by unmeritorious or tendentious
defence needs no emphasis, it is
       important to pay proper regard to the defendant's interest and to be wary of
       allowing
the rule to become an instrument of oppression or injustice in the
       laudable interest of expediting litigation. It is true
that "justice delayed is
       justice denied", but not at the expense of a fair hearing for both parties,
       unless the Court
is sure there is no real defence. It is unlikely to reach this
       conclusion if the affidavits disclose disputed questions of
fact, the resolution
       of which depends on an assessment of credibility or reliability of witnesses.

[24]   But importantly,
the Court of Appeal added:

       There may be cases in which the answer clearly emerges from the material
       before the Court,
or where the credibility of one party is shown to be so
       suspect that his evidence can be rejected without the need to assess
him as a
       witness or to listen to any further explanation he may wish to make.


Submissions for the plaintiff


[25]   As
a preliminary point, the plaintiff objected to parts of the owner's affidavit.
Mr Heard for the plaintiff submitted that no factual
basis was provided for his
proferred statements of opinion. The plaintiff objected to the contents of paragraph
5.1, the last sentence
of paragraph 6.1 and paragraphs 6.2, 7.2 and 7.3 being read.
The point was properly taken, but it was resolved during the hearing
by a ruling that
the Court would receive the evidence de bene esse and subject to weight. I will refer
further to the opinion evidence
of the owner below.


[26]   Mr Heard submitted that consent to an assignment is not a requirement for
enforceability. Thus, the
plaintiff is entitled to rely upon Boatspray HMB's rights.
During argument at the hearing, counsel were referred to the provisions
of ss 50 ­ 51
of the Property Law Act 2007 (the Act) dealing with assignment of a thing in action,
in this case the contract between
Boatspray HMB and the owner.


[27]   Here, no question of priority or payment of the assignor arises. The owner
did not pay the
debt owing to Boatspray HMB. He paid some of the invoices to the
plaintiff, but refused to pay others. Mr Heard submitted that the
Act did not require
notice of the assignment. However, Mr Heard submitted that the evidence clearly
established that notice had been
provided such that it would be acted upon in the
ordinary course of business. He cited the evidence of Mr Miller which referred to

the newsletter to all customers, the changes to the emails, invoices and posted terms
and conditions showing the name of the plaintiff
and the payment by the owner of
invoices in the name of the plaintiff with cheques to Boatspray Ltd.


[28]    Counsel submitted
that the owner was only ever invoiced by the plaintiff.
The owner paid the invoices by cheque. The plaintiff was clearly identified
in the
letterhead and email signatures that were part of the correspondence. The plaintiff
submitted that accordingly the owner was
well aware of the party he was dealing
with and instructed it to complete work on the vessel over the course of several
months.


[29]    As an alternative submission, the plaintiff argued that the owner entered into
a fresh contract with the plaintiff in October/November
2008 when difficulties with
adhesion of paint to the old surface of the vessel emerged. This meant that the
owner requested painting
services to be performed on the vessel and agreed that the
services would be paid for on a "charge up" basis. Counsel submitted that,
even if
there were no express agreement to this effect, the plaintiff would be entitled to
recover for the services rendered on a
quantum meruit basis, a point made in the
written submissions of the owner's counsel. On this basis, there was evidence before
the
Court as to the reasonableness of the charges in Mr Morley's affidavit, recently
filed to meet the claim by the owner that the costs were excessive.


[30] 
  The plaintiff further submitted that the owner's evidence that he was given an
estimate in September did not cross the threshold
of credibility.       The plaintiff
submitted that any estimate given in September 2008 was superceded by the
discovery in October
of inherent defects in the underlying original paintwork. This
was when the owner gave instructions to paint additional parts of
the interior of the
boat.


[31]    On the point raised by the owner that some of the work was defective,
counsel for the plaintiff
submitted that the evidence of the owner, not being an
expert, should be given very little weight. Rather, the unchallenged expert
evidence
of Mr Morley and Mr Miller should be accepted. Such evidence was that the vessel

does not need repainting, that the quality
of the job was in line with a mid-price job
and that the amount charged was reasonable.


[32]   Counsel for the plaintiff submitted
that there was a debt to the plaintiff in the
amount of $29,765.55. There were no arguable defences to the claim. Interest and
indemnity
costs were sought in accordance with cl 17 of the terms and conditions.


Submissions for the defendant


[33]   Mr Keene for the
defendant submitted that there was no contract between the
plaintiff and owner. Mr Keene submitted that any discussion after the
plaintiff took
over work from Boatspray HMB as to terms and conditions was denied by the
owner. He submitted that the plaintiff had
not established that the owner was shown
or noticed any standard terms and conditions after September 2008.


[34]   Mr Keene also
submitted that the estimate of costs was grossly exceeded.
The defendant claimed that the plaintiff, on taking over the contract
increased the
hourly charge out rate, although Mr Keene accepted that this was not established in
the evidence. He also submitted
that the additional scraping back work should not
have increased the cost by as much as now claimed, as a significant amount was
included in the initial estimate. Counsel acknowledged that the owner had accepted
that a reasonable charge for the plaintiff's services
was between $30,000 to $35,000,
but he submitted that a total cost of around $53,000 inclusive of GST was excessive.


[35]   Mr
Keene also submitted that the plaintiff's expert was not qualified to give
opinion evidence. Counsel noted that Mr Morley had initially
been approached by
the owner, yet he later gave affidavit evidence for the plaintiff. Thus the expert was
in a situation of conflict.
Further, the purported expert evidence should have been
provided at the outset by the plaintiff. On the issue of the value of the
services,
Mr Keene submitted that it was appropriate for the owner to express his perception
of over-charging in his affidavit.


[36]     Finally, Mr Keene submitted that the list of defective work put forward by
the owner could not be dismissed at the summary
judgment stage and that a full
hearing was required.


Issues


[37]     The issues to be determined in this application are whether:


         a)     The plaintiff has established that the defendant has no arguable
                defence; and


         b)   
 There are genuine conflicts of interest that make summary judgment
                inappropriate.


Discussion


Expert evidence


[38]     Reference has already been made at [25] above to the objections to the
opinion evidence contained in the first affidavit
of the owner. The ruling during the
hearing to receive the evidence as to the quality of the painting services supplied, the
reasonableness
of the charges and the total cost of the work carried out was subject
to considerations as to the weight of such evidence. There
is no doubt that the owner
is not an expert. As a party, his evidence on these points must have diminished
weight.


[39]     So
far as the affidavit evidence of Mr Morley is concerned, I am satisfied that
he is entitled to give expert evidence of the matters to which he deposed. Further, I
am satisfied,
as required by s 25 of the Evidence Act 2006, that such expert opinion
evidence will be of substantial help in providing a balance
to the points that the
owner raised in his first affidavit. I reject the criticism of counsel for the owner
based on the late filing
of the Morley affidavit. It was open to the plaintiff to file
expert evidence in order to assist the Court to determine whether the
evidence of the
owner dealing with the quality of the services and the reasonableness of the charges

crossed the credibility threshold
required in a summary judgment case. He chose not
to do so. Further, his counsel did not seek an adjournment for the purpose of
instructing
an expert. The relevant evidence is considered below.


Assignment


[40]   The first argument advanced by the owner was that there
was no contract
between the plaintiff and the owner. The essence of this argument was that the
owner was not notified by the plaintiff
of the assignment of its contract from
Boatspray HMB to the plaintiff. It is not disputed that initially the owner entered
into a
contract with Boatspray HMB. But, on 1 September 2008 Boatspray HMB's
rights were assigned unconditionally to the plaintiff.    
   The sale and purchase
agreement included the purchase of all the tangible and intangible assets of
Boatspray HMB. Clause 1.1(8)
defined intangible assets as Boatspray HMB's rights
and benefits owned by it in respect of the Boatspray business. Clause 18 of the
special conditions set out that all the customer contracts were to be assigned to the
plaintiff on settlement. The plaintiff paid
the sum of $4,145.79 for the work in
progress as part of the consideration for the assignment of Boatspray HMB's rights
under its
contract with the owner.


[41]   Section 50 of the Act provides that the effect of the assignment between the
parties to the assignment
and the effect of the assignment on the debtor have been
separated. Thus, for the assignment to be effective, it is not necessary
that the debtor
is given notice of the assignment. The notice requirements in s 51(2) and (3) of the
Act affect the question of whom
a debt is payable to, not when it arises or when it is
due. If the debtor pays the debt owing to the assignor before the debtor had
actual
notice of the assignment, then the debtor is discharged to the extent of the payment.
However, if the debtor has actual notice
of the assignment before payment, then the
debt is payable to the assignee.


[42]   The legislation contains no formal requirements
regarding notice in s 51(2)
and (3). Further, the notice does not have to be given by the assignor or the assignee.
It is sufficient,
regardless of the source, if the notice was such as would be acted

upon by a business person in the ordinary course of affairs:
see Choses in Action
Laws of New Zealand (1993) at 39.


[43]    In case I am wrong, I am satisfied that the owner did have notice
of the
assignment.     The owner's claim in his affidavit that he was unaware of the
assignment of the contract to the plaintiff
has no merit. The evidence of the plaintiff
establishes that the owner would have been well aware that he was contracted with
the
plaintiff and that the assignment had occurred.           The plaintiff's name was
displayed on the top of its invoices. The owner
paid three invoices from the plaintiff
with cheques made out to the plaintiff. I accept that the owner received a copy of the
Half
Moon Bay Marina newsletter that reported that the Boatspray business had
changed hands.      Further, all emails and correspondence
and posted terms and
conditions after September 2008 all referred to Boatspray Limited and not Boatspray
HMB.      Therefore, the
owner's denial of notice does not pass the credibility
threshold. Accordingly, the first claimed defence based on the existence of
no
contract between the plaintiff and the owner cannot succeed.


[44]    Incidentally, part of the written submissions filed on behalf of the owner on
this part of the
case stated:

        If no contract between the Plaintiff and the Defendant exists, and the
        Plaintiff has completed work
for the benefit of the Defendant, the Plaintiff
        may have a QUANTUM MERUIT claim.

[45]    Hence, if the first defence had
any merit, it would have been open to the
plaintiff to seek leave to amend the nature of its claim against the owner. In case the
matter goes further, I observe that all of the elements of the restitutionary claim of
quantum meruit were established on the evidence,
including the reasonableness of
the charges for the services rendered and the overall cost of the painting work carried
out on the
vessel at the owner's request. Had the issue arisen, I would have found on
the facts that it may be inferred from the conduct of
the parties that the contract for
the painting work on the vessel from September 2008 involved a tacit agreement to
substitute such
contract for the earlier one with Boatspray HMB.              A claim in
quantum meruit would therefore lie: see Chitty Chitty on
Contracts: General
Principles (30ed 2008) at 1880 - 1883.

Estimate of costs


[46]    The owner submitted that it was not reasonable
for the plaintiff to charge
more for the work than one-quarter or one-third of the amount of the estimate. The
defendant relied on
an alleged estimate of $25,000 given by Boatspray in September.
Counsel for the defendant also relied on Kirk v Vallant Hooker &
Partners  [2000]
2 NZLR 156 (CA). This case involved solicitor's costs and the revision of such bill
of costs. Although an estimate had been given, the case
concerned what factors
could be taken into account by the Registrar in assessing a fair and reasonable fee. I
do not consider that
the principles discussed in Kirk have any application to the facts
of this case.


[47]    The plaintiff's uncontroverted evidence
was that it only gives estimates on its
standard written form. The estimate of $25,000 claimed by the owner to have been
given was
alleged to have been oral. There was evidence of previous estimates that
were provided on the standard written form. Counsel for
the plaintiff also noted that
the owner only mentioned this alleged verbal estimate once these proceedings were
commenced.


[48]
   I am satisfied that the plaintiff did not provide the owner with a verbal
estimate of $25,000. The owner's claim to the contrary
is inherently improbable in
the circumstances of this case. In any event, I accept that an estimate is just that, the
total cost
of a painting project of this nature can and often does increase
significantly. Even if I am wrong and an estimate of $25,000 was
given, the owner
was told in October 2008 that the nature of the job had changed substantially, after
the discovery of a lack of
adhesion of underlying paintwork.


[49]    Further, the owner gave additional instructions for other work on the vessel.
Such other
work included additional interior work, the repainting of some additional
interior parts, the supply of materials to the owner for
the engine room and
associated disbursements. The nature of this job, and the relationship between the
owner and Mr Miller make it
highly likely that the agreed basis of the work was on a
"charge up" basis. Any estimate given would have ceased to have any relevance
once the problems of surface adhesion were identified by the plaintiff's staff around

22 October 2008. As a result, I am satisfied
that the owner cannot now attempt to
avoid payment of the outstanding sum by claiming that the total cost has exceeded
the estimate.
The increase in costs has been partly caused by events beyond the
plaintiff's control and by the nature of the additional instructions
given by the owner
to the plaintiff's staff. Therefore, the second defence sought to be raised by the
owner lacks both a factual
basis and does not pass the credibility threshold.


Defective workmanship


[50]   The third defence raised by the owner was that
summary judgment is not
appropriate as he has identified a number of defects with the work. The owner
argued that the issues relating
to the defective work should be examined at a full
hearing. In this context, the owner claimed that it would cost $15,000 to repair
the
defects. Such claim is at odds with comments made by the owner at the time that the
vessel looked great except for a few minor
issues. Further, the owner said that "the
boat is 99% perfect". The owner's claims as to the extent of the defects are not
supported
by the expert evidence of Mr Morley. His evidence is that the costs
charged were reasonable and that the overall finish of the vessel
was within an
almost infinite range of both cosmetic and overall quality in repainting boats for a
medium priced repaint.


[51]
  This is not a case where the fact finder on summary judgment is required to
resolve a conflict between experts. I accept that is
not permissible. Rather, it is a
case where the owner, despite his initial satisfaction with the painting services
rendered, later
claimed that there were defects totaling $15,000. But the owner is not
an expert as discussed at [38] above. I am satisfied that
the owner's claim does not
pass the credibility threshold in the light of all the other material before the Court.


[52]   The owner
raised the claim of defects as a third line of defence. The plaintiff
met that with evidence from an employee who dealt with the
owner and the expert
evidence of Mr Morley. I do not consider that the claimed defects are sufficient or
of such a nature to preclude the granting of summary judgment. In determining
whether
there are genuine and relevant conflicts of fact, the Court is entitled to reject
spurious defences or plainly contrived factual
conflicts: see Jowada Holdings. I

accept the evidence of Mr Morley as to the standard of the work completed by the
plaintiff and
the evidence of Mr Miller that the issues raised are not defects. Any
claim by the owner to the contrary is spurious when considered
in the light of all the
other evidence.


Result


[53]     For the above reasons, I am satisfied that the plaintiff has clearly
discharged
the onus of showing that the defendant has no arguable defence to the claim.
Accordingly, this is an appropriate case
to grant summary judgment.


Costs


[54]     The plaintiff sought costs on an indemnity basis. This was on the basis that
the plaintiff's
standard terms and conditions included a term that full legal and
collection costs would be added to all overdue accounts. The Court
has a discretion
whether or not to award indemnity costs even if provided for, and to determine what
is a reasonable sum: see Pangani
Properties Ltd v Owens Transport Ltd HC AK
CIV 2001-404-2036 12 July 2004.


[55]     I am not satisfied that the case for indemnity
costs has been made out.
Reasonable costs for a case of this nature would be based on a 2B basis. I appreciate
that a final resolution
of the question of costs might well turn on matters not
presently before the Court.


Orders


[56]     I grant summary judgment
in favour of the plaintiff in the sum of $29,765.55
plus interest at the statutory rate, together with costs, the final quantum of
which are

reserved. If counsel cannot agree, memoranda of no more than four pages may be
filed.




_________________________

                   Stevens J